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Auto accident victims are used to getting an avalanche of solicitations by mail, but according toThe Columbus Dispatch, an Ohio personal-injury law firm (Scott Schiff & Associates) saw a chance to cut in line by sending text messages.

Personal-injury lawyer Scott Schiff, president of the firm, said … “It’s obviously a means of reaching the public through the most advanced technology out there,” he said.

Texting, first of all, is not advanced technology. We’ve been texting since our cell phones looked like this:

More to the point, what a horrible thing to do. Kevin O’Keefe imagines a likely scenario:

Imagine a father visiting his daughter in the hospital the day after a serious accident and getting text messages from a lawyer with links to a website with pictures of cars rolled over in a ditch, trucks hitting cars, victims being loaded into ambulances, and x-rays.

That’s probably not far off. An Ohio lawyer, Nita Hanson, had a 17-year-old client who received such a text message within 24 hours of his accident, and asked the Ohio Board of Commissioners on Grievances and Discipline for clarification.

First, here’s how text-message solicitation works, according to the Ohio Supreme Court:

In the usual scenario reported to the Board, lawyers obtain the cellular phone numbers of prospective clients from accident or police reports. The lawyer then sends SMS text messages (hereinafter‚ “text messages”) directly to the cellular phone numbers indicated in the reports. The messages contain direct solicitations for professional employment. Given the limited number of characters usually available in a standard text message, the message contains very general information about the lawyer and his or her legal services. Often the message will contain an internet link to a website that contains additional advertising material.

The Ohio Supreme Court, by the way, cleared the practice in its advisory opinion (pdf). I don’t think it’s accurate to say the court “approved” of sending text messages to accident victims, though. Or, as Scott Greenfield put it, “says it’s cool.” The court did not express an opinion on whether text-message solicitations are a good idea, or certify them as non-douchey in any way. In fact, it imposed a number of requirements on text-message solicitations. For example, if you want to solicit someone by text message in Ohio, you must include the entire text of Ohio’s “Understanding Your Rights” statement:

THE SUPREME COURT OF OHIO, WHICH GOVERNS THE CONDUCT OF LAWYERS IN THE STATE OF OHIO, NEITHER PROMOTES NOR PROHIBITS THE DIRECT SOLICITATION OF PERSONAL INJURY VICTIMS. THE COURT DOES REQUIRE THAT, IF SUCH A SOLICITATION IS MADE, IT MUST INCLUDE THE ABOVE DISCLOSURE. 1

That’s two text messages all by itself. And that’s not the end of the court’s requirements. Lawyers also have to include “ADVERTISING MATERIAL” or “ADVERTISEMENT ONLY” at the beginning and end of (each?) message. Given all the conditions imposed by the court, it might be more appropriate to say that the Ohio Supreme Court disapproved of the practice, rendered it extremely unlikely to be effective, and allowed it to go on any way because it ultimately couldn’t find a provision in Ohio’s ethics rules to prohibit it.

Fortunately, the “cutting-edge” marketing of the firm that started this whole thing seems not to have paid off. Scott Schiff says “the texting program wasn’t that effective, and the firm isn’t doing it now.”

O’Keefe is pretty sure the race to the bottom is not over, though. “Follow this advancement of technology argument and we’ll soon have lawyers talking out of drones flying over car accidents.” Expect ethics inquiries like these in about ten years:

Is it ethical for your drones to land on the ambulance garage to save power?

Is it ethical to arm your ambulance-chasing drones to disable competing firms’ drones?

Hard to distinguish text messaging from “chat room” communication from phone conversations from my perspective (34 yr old).. the line has to be blurred even more for the 18-25 year old demo.

Speaking of sophisticated advertising.. we have multiple injury lawyers dressing up as Santa Claus on billboards this December. Genius..

static

Before reaching the nuts and bolts of how to “ethically” text solicitations, there is a larger question to be addressed, which is that the Ohio Supreme Court’s reaction wasn’t “are you fucking nuts?”
But then, maybe I’m just not into texting enough to parse the details.

That may have been its reaction, but that’s not what you get in an advisory opinion when you treat ethics as merely a collection of rules.

static

Notwithstanding my buddy Josh’s (Hi, Josh) constitutional analysis (we tend to differ on these issues somewhat) that Ohio couldn’t have reached a different conclusion, commercial speech isn’t accorded the same level of protection as non-commercial speech, and it can be subect to time, place and manner restrictions.
This was an opportunity to impose such a restriction. Did I mention Josh is wrong on the 1st Amendment? That happens sometimes.

Josh King

Except that both times the Supreme Court case has considered bans on forms of written lawyer solicitation (Primus & Shapero) the court concluded that such bans are unconstitutional. And they used the commercial speech standard to do so.

Josh King

From a first amendment perspective, there’s no other result Ohio could have reached. There’s simply no constitutional basis for prohibiting text messages.

Guest

Then there is no constitutional basis to prevent in-person solicitation. Since, per your analysis, lawyers have the same first amendment right to walk up to accident victims, who are on the street waiting for an ambulance, and say “hire me”.

Guest

Most states forbid verbal solicitation (via personal contact or telephone) but permit written contact (through the mail and print advertising). The purpose of the rule seems to be to prevent pushy, in your face, soliciting while allowing clients to receive written information when the clients are ready to absorb it.

The written/verbal distinction served well before the internet. The distinction makes no sense anymore.

If it were up to me, I would allow emails but forbid text messages. Email is now the predominant form of business communication and has superseded written letters for most purposes. But email instantaneously go to phones, which makes it more intrusive. Text messaging is as intrusive as a phone call.

The FCC banned unsolicited text messages, effective 10/16/2013, through a rule making earlier in the year. Lawyers would not have special authorization, regardless of the ethics opinion. Useful info about this here: http://goo.gl/rWjn1c